DOJ Watchdog "Revising" Critical Report on John Yoo's Legal Work on Torture

A Justice Department watchdog report that is said to be highly critical of the
legal work conducted for the Bush administration by three attorneys who worked
at the agency's powerful Office of Legal Counsel, is in the process of being
revised after the agency received responses on the report's conclusions from
the attorneys under scrutiny, according to a letter sent to two Democratic senators
by a Justice Department's acting assistant attorney general.

The Justice Department's Office of Professional Responsibility (OPR) is apparently
"watering" down some of the more critical conclusions related to legal
opinions on "enhanced interrogation" policies based on responses from
John Yoo, Steven Bradbury and Jay Bybee. It's now unknown, the DOJ said, when
the revised version of its report would be complete.

In a March 25 letter sent to Democratic Senators Sheldon Whitehouse and Richard
Durbin, the lawmakers who wrote OPR last year requesting a probe to determine
whether the attorneys legal work violated "professional standards,"
Faith Burton, the DOJ's Acting Assistant Attorney General, confirmed that the
report was completed in late December 2008, and that former Attorney General
Michael Mukasey and Deputy Attorney General Mark Filip reviewed it and demanded
that Bradbury, Yoo and Bybee be given an opportunity to respond.

Moreover, "Attorney General Mukasey, Deputy Attorney General Filip and
OLC provided comments, and OPR revised the draft report to the extent it deemed
appropriate based on those comments," Burton said. "During the course
of the investigation, counsel for the former Department attorneys asked OPR
for an opportunity to review and comment on the report prior to any disclosure
of its results to Congress or the public."

"Attorney General Filip likewise requested that OPR provide the former
Department attorneys with such an opportunity," Burton added. "For
these reasons, OPR is now in the process of sharing the revised draft report
with them. When the review and comment period is concluded, OPR intends to review
the comments submitted and make any modifications it deems appropriate to the
findings and conclusions.

"OPR will then provide a final report to the Attorney General and Deputy
Attorney General. After any additional review they deem appropriate, the Department
will determine what disclosures should be made. Due to the complexity and classification
level of the draft report, the review process described above likely will require
substantial time and effort."

Burton, however, said she could not make any promises that the report would
be publicly released, nor could she predict if and when Durbin and Whitehouse
would get an opportunity to review the report.

"While we appreciate your request for a disclosure commitment, we can
only fully evaluate the scope of appropriate disclosures once the review process
is completed," Burton said. "We trust you understand that those decisions
depend in part on the content and conclusions of the OPR final report and the
outcome of any further Departmental review."

The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith,
then head of the OLC, got into a tense debate with then-White House counsel
Alberto Gonzales about two August 2002 torture memos written by Yoo and signed
by Bybee, which opened the door to abusive tactics such as waterboarding, which
subjects a detainee to the sensation that he is drowning. Following the meeting
with Gonzales, Goldsmith, who had rescinded two memos in 2003, resigned.

Goldsmith later described the torture memos as "legally flawed" and
"sloppily written."

H. Marshall Jarrett, who heads OPR, conducted the investigation. Sources familiar
with the draft version of the report said it reached "damning" conclusions
about numerous cases of "misconduct" in the advice from Yoo, Bybee
and Bradbury provided to the White House about interrogations and domestic surveillance.

OPR investigators determined that all three blurred the lines between an attorney
charged with providing independent legal advice to the White House and a policy
advocate who was working to advance the administration's goals, said the sources
who spoke on condition of anonymity because the contents of the report are still
classified.

One part of the OPR report criticized Yoo's use of an obscure 2000 health benefits
statute to narrow the definition of torture in a way that permitted waterboarding
and other acts that have historically been regarded as torture under US law,
the sources said.

On Tuesday, Durbin and Whitehouse responded to Burton with a two-page letter.

The senators zeroed in on Bradbury, the former head of OLC who was the author
of three May 2005 legal opinions that reinstated brutal interrogation policies
Goldsmith had rescinded.

Durbin and Whitehouse asked whether Bradbury was permitted to comment on the
draft report's conclusions since he was acting head of OLC, which was permitted
to comment on the report's conclusions, according to Burton.

Three months before Bush exited the White House, Bradbury, in a "memorandum
for the files," renounced several legal opinions drafted by Yoo and Bybee.

Bradbury attempted to justify or forgive Yoo's controversial opinion by explaining
that it was "the product of an extraordinary period in the history of the
Nation: the immediate aftermath of the attacks of 9/11."

Bradbury wrote another memo five days before Bush left office in January in
which he once again repudiated Yoo's legal opinions. It would appear that this
memo was in response to the OPR report. Bradbury said in the January 15 memo
that the flawed theories by Yoo in no way should be interpreted to mean that
Justice Department lawyers did not "satisfy" professional standards.

Rather, Bradbury wrote, "In the wake of the atrocities of 9/11, when policy
makers, fearing that additional catastrophic terrorist attacks were imminent,
strived to employ all lawful means to protect the Nation."

Durbin and Whitehouse said that Bradbury's "memorandum for the files"
would make it a "conflict of interest" for him, as acting head of
OLC, to respond to OPR's findings.

"Mr. Bradbury ... is reportedly a subject of the OPR investigation,"
the senators wrote. "As such, it would appear to be a conflict of interest
for Mr. Bradbury to review and comment on the OPR report on OLC's behalf ...
If Mr. Bradbury did review the OPR report, this could have improperly influenced
the opinions he expressed on OLC's behalf ... Particularly his decision to emphasize
that the authors of discredited OLC opinions on detainee issues had not necessarily
violated their professional responsibilities."

Durbin and Whitehouse added that they are "concerned" that the final
report shared with Attorney General Eric Holder, his deputy, and "ultimately
Congress," will have "undergone significant revisions at the behest
of the subjects of the investigation without the benefit of reviewing OPR's
initial draft report."

The senators requested responses to five questions from DOJ, including whether
OPR intends to share the original draft of its report with Holder in order to
ascertain "what revisions have been made to the report."

Additionally, Durbin and Whitehouse said OPR's decision to share the original
draft report with Yoo, Bybee and Bradbury "appears" to be a "departure
from normal OPR practice to provide an opportunity for the attorney to review
and comment on the report."

However, according to OPR protocol, if an investigation "involves alleged
illegality, the attorney alleged to have committed misconduct is entitled to
have counsel present to assist him or her.

"An attorney alleged to have engaged in misconduct is interviewed alone
unless counsel is permitted to attend. At the conclusion of the interview, the
attorney will be given an opportunity, subject to a confidentiality agreement,
to review the transcript and to provide a supplemental written response and
additional documents relevant to the investigation.

"In the interview, the attorney alleged to have committed misconduct would
be asked to address each of the outstanding issues and allegations. In some
cases, OPR determines that further information is needed to resolve the matter.
The first step is usually to request a written response from the attorney involved
in the allegation.

"If OPR determines that professional misconduct or poor judgment occurred,
it prepares a report containing its findings and conclusions, and provides that
report to the Deputy Attorney General as well as the appropriate Assistant Attorney
General, the Director of [Executive Office of U.S. Attorneys], or other appropriate
component head."

In an apparent response to criticism of the quality of his legal opinions that
gave President George W. Bush virtually unchecked power, Yoo said working for
the federal government gave him "very little time to make very important
decisions.... You don't have the luxury to research every single thing and that's
accelerated in war time."

"You really have decisions to make, which you could spend years on,"
Yoo told the Orange County Register in an interview published March 3. "Sometimes
what we forget as private citizens, or scholars, or students or journalists
for sure [he laughs], is that in hindsight, it's easier to say, 'Here's what
I would have done.' But when you're in the government, at the time you make
the decision, you don't have that kind of luxury."

In response to a question about the OPR investigation, Yoo said he wished "they
weren't doing it."

"But I understand why they are," Yoo told the OC Register. "It
is something one would expect. You have to make these kinds of decisions in
an unprecedented kind of war with legal questions we've never had to think about
before.

"We didn't seek out those questions. 9/11 kind of thrust them on us. No
matter what you do, there's going to be a lot of people who are upset with your
decision. If Bush had done nothing, there would be a lot of people upset with
his decision, too.

"I understood that while we were doing it, there were going to be people
who were critical. I can't go farther into it, because it's still going on right
now. I'm not trying to escape responsibility for my decisions. I have to wait
and see what they say."